Please provide a citation.
I doubt it, but it doesn't matter, we're living post-Heller and McDonald now.
The O/P probably does not recognize what obiter dicta is but it is extraneous reasoning not needed to resolve the case. The D.C. and MacDonald cases dealt with situations where the regulations were so severe in restricting firearm ownership and use that the 2A was a dead letter in those jurisdictions. Under any standard of review (which is not specified in the decision nor in MacDonald), the laws in these jurisdictions would fail the rational basis test as you cannot regulate a constitutional right for individuals out of existence. Implicitly Justice Stevens recognizes this and so his argument is that the 2A is only a collective right for states to have militias and he distorts history to make it so.
Scalia's argument, buttressed by excellent history of firearms law btw, is primarily a textual one.
In every instance where the word "People" is used in conjunction with a right, it is an individual right not a collective one. For yourself, do a control f with the text of the Constitution and Bill of Rights if you want to see. When the Constitution refers to States and their powers and prohibitions, it says "states"
For example,
Article I, Sec. 2, "The House of Representatives shall be composed of Members chosen every second Year by the
People of the several States. . . "
The 1st Amendment, ". . . the right of the
people peaceably to assemble. . ."
The 2nd Amendment, "A well regulated Militia, being necessary to the security of a free State, the right of the
people to keep and bear Arms, shall not be
infringed."
4th Amendment, "The right of the
people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. . ."
9th Amendment , "The
enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the
people."
10th Amendment, ". . .are reserved to the States respectively, or to the
people."
17th Amendment, ". . The Senate of the United States shall be composed of two Senators from each State, elected by the
people . . .[ vacancies are filled] . . until the
people fill the vacancies by election as the legislature may direct."
I left out the famous example of We the People of the United States in the preamble which would read quite differently if it said, "We the States of the United States, etc."
Consistently when referring to the powers of the states, the Constitution and amendments say "states" not "people". So you cannot consistently read the constitution as using states and people as synonyms as it will not literally make sense. That is Scalia's primary argument in interpretation. Thus, it is a right that is given to individuals who might use it for collective action such as a militia or to counteract a tyrant but the right itself is understood as individual.
Part of the issue confusing the matter is that we seldom talk of negative versus positive rights. Opponents of the 2A consistently wish to treat firearm ownership as a privilege (a positive right is granted by government via legislation or court action) for a collective societal purpose which under common law can be overridden by standard legislation. A negative right pre-exists before government and as Locke provided, people enter into governing compacts to protect these rights. Note that all the government has to do is not act to infringe your freedom of speech or right to own a firearm via actions. It does not require government buy you a firearm but simply leave you alone to chose to do so. A positive right, such as Social Security, comes from legislation and thus its terms can be altered by ordinary legislation (as the Supreme Court has repeatedly ruled.)
However, given the prior history of the right under the English Bill of Rights, the state constitutions that guaranteed the right prior to the U.S. Constitution, and even the historical situation indicate that an individual right had to exist.
Technically, absent international law, states as such do not have "rights" within the Constitution, instead, they have their residual powers remaining after they joined the United States and restrictions on powers that were granted to the new United States by the conventions ratifying the original document (and agreed upon by new states as a requirement for entry/reentry to the Union). Once, the Bill of Rights was applied definitively to the states via the Reconstruction Amendments, it is patently a restriction on the powers of the states so that individuals within those states can call to the federal government to negate state actions in violation of the U.S. Constitution and Bill of Rights.
Those proposing "states" rights are echoing John Calhoun in arguing that the U.S. Constitution was a compact of states similar to that of the Article of Confederation where each state reserved its ability to abrogate the compact (and any duties under it.) Lincoln argued that the preamble of the Constitution begins with We the People of the United States not how the Articles listed each state by name and repeatedly dealt with the state itself. Second, the nature of the ratification was through popular conventions of people elected for that purpose in each state, not by state legislative ratification. It is not a treaty of the states and cannot be for the federal government to be able to interact with individuals without the mediation of the state that they live in. In other words, that dog won't hunt. It is not a treaty of the states.
Here is what O/P is referring to in Scalia's majority opinion in Section III which is dicta to the case:
"III
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[Footnote 26]
We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” See 4 Blackstone 148–149 (1769); 3 B. Wilson, Works of the Honourable James Wilson 79 (1804); J. Dunlap, The New-York Justice 8 (1815); C. Humphreys, A Compendium of the Common Law in Force in Kentucky 482 (1822); 1 W. Russell, A Treatise on Crimes and Indictable Misdemeanors 271–272 (1831); H. Stephen, Summary of the Criminal Law 48 (1840); E. Lewis, An Abridgment of the Criminal Law of the United States 64 (1847); F. Wharton, A Treatise on the Criminal Law of the United States 726 (1852). See also State v. Langford, 10 N. C. 381, 383–384 (1824); O’Neill v. State, 16 Ala. 65, 67 (1849); English v. State, 35 Tex. 473, 476 (1871); State v. Lanier, 71 N. C. 288, 289 (1874).
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."
BTW, Cruikshank did not deal with whether states had the powers to create militias but simply denied that a white mob depriving African Americans of their firearms violated the Civil Rights Act of 1871. The Court held that the right to bear arms was not a protected civil right. The whites were appealing their federal convictions for deprivation of civil rights by disarming African Americans during a race riot.
Miller did not deal with the power of states to have militias either as it dealt with an ex parte appeal of a district judge's ruling that the NFA was unconstitutional. Miller absconded but his sawed off shotgun more or less became the appellee. Justice Sutherland held that because the firearm was not in common military use that the U.S. government could restrict ownership via the congressional taxing clause power (note not banning it but making such expensive and difficult to obtain.) So that supposed century of constitutional precedent does not deal with militias at all as the interpretation of the 2A was first used to deprive African Americans of their right to own firearms and then a right of a bootlegger to have a sawed of shotgun without paying the $200 NFA tax and registration. Cruikshank was an odious decision that also felt it was fine to deprive African Americans of their rights to peaceably assemble, vote, etc.
This is what Chief Justice Waite had to say about the 2nd in passing, "
The right there specified is that of 'bearing arms for a lawful purpose.' This is not a right granted by the Constitution. Neither is it in any manner dependent upon that instrument for its existence. The second amendment declares that it shall not be infringed; but this, as has been seen, means no more than that it shall not be infringed by Congress. This is one of the amendments that has no other effect than to restrict the powers of the national government, leaving the people to look for their protection against any violation by their fellow-citizens of the rights it recognizes, to what is called, in The City of New York v. Miln, 11 Pet. 139, the 'powers which relate to merely municipal legislation, or what was, perhaps, more properly called internal police,' 'not surrendered or restrained' by the Constitution of the United States. "
No words about being a collective right anywhere nor do we see a discussion of the militia nature of the 2A. Waite's opinion is patently absurd in that the drafters of the 13th, 14th, and 15th Amendments overruled Barron v. Baltimore and granted Congress the power to enforce each of these amendments. He is quoting dead precedent in doing so. The Court acted equally lawlessly in relegating the privileges and immunities clause, the equal protection clause, and the Civil Rights case to grant African Americans full citizenship after the Civil War. Generally, the court's record in protecting rights other than of railroads during the 1870's to 1890's is abysmal.